# PROF. YASHPAL AND ANR v. STATE OF CHHATTISGARH AND ORS

- **Citation:** [2005] 2 S.C.R. 23
- **Court:** Supreme Court of India
- **Decided:** 2005
- **Bench:** R.C. Lahoti, G.P. Mathur, B P.K. Balasubramany An
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/prof-yashpal-and-anr-v-state-of-chhattisgarh-and-ors-20524
- **Pages:** 60

## Headnote

Constitution of India-Schedule VII List II Ently 32, List /II Entry 25
and Article 246-lncorporation of private university-Pre-requisites for'- c
Discussed.
Schedule VII List II Entries 32, 66 List Ill Entry 25 and Article 245Universities having power to have off-campus centers outside the State-Held,
ultra vires Article 245 (!)-Primacy of legislative competence of Parliament:__
Maintenance of high standards-Need for-' University '-Meaning of.L. D
Discussed.
Schedule VII List JI Entry 32, Articles 246, 73 and 162-Jncorporation
of university-Mode for-May be established only through legislative enactment
and not by exercise of executive power-Social impact of incorporation bf
university-Comparison with incorporation ofCompan~Distinction between. E
Articles 246, 254 and Schedule VII-Legislative competence-Primacy
of Parliament-Held, any State legislation which simplifies or sets at naught
-
an enactment validly made by Parliament would be wholly ultra vires.
Education:
F
Universities-Chhattisgarh Niji Kshetra Vishwavidyalaya (Sthapana Aur
Viniyaman) Adhiniyam, 2002-Sections 5,6,3(8) & 9-Chhattisgarh Ni}i
Kshetra Vishwavidyalaya (Sthapana Aur Viniyaman) Sansodhan Adhiniyam,
2004-Sections 5,6,3(6),2(7),5(J)(b)-Constitutional validity of-Held, are ultra
vires the Constitution, being a fraud on the Constitution.
G
-
Universities-Degree-Value of-Held, principal advantage of holding
a university degree is in matter of employment, public or private or in self
employment-Interest of society requires that the holder of an academic degree
23
H
24
SUPREME COURT REPORTS
[2005] 2 S.C.R.
A possesses the proficiency and expertise in the suf?iect which the degree
certifies-Thus, poirer conferred to specific bodies-U0C Act, IY56-Sectio11
22.
University Grants Commission Act, 1956-0biect of and reasons for
creation of-Discussed-Expression 'established or incorporated' to be read
B as 'established and incorporated' in so far as private universities are concerned
Under Section 5 of the Adhiniyam the State has been empowered to
incorporate and establish a university by issuing a notification in the
Gazette and Section 6 permits such university to affiliate any college or
C other institution or to set up more than one campus with the prior
approval of the State Government.
According to the petitioners, after coming into force of the
Adhiniyam, the State Government has been, simply by issuing notifications
in the Gazette, establishing universities in an indiscriminate and
D mechanical manner without having slightest regard to the availability of
any infrastructure, teaching facility or their financial resources. In about
one year 112 universities were established and many of them had
absolutely no buildings or campus and were running from one room
tenements. There was absolutely no regulation or supervision over them.
The legislation has been ehacted in a manner which has completely done
E away with any kind of control of University Grants Commission ('UGC')
over these private universities. The guidelines issued by UGC on the
courses being taught and award of academic degrees has been given a
complete go-by. The universities issued brochures for award of all kinds
of degrees like "Member of the International Institute of Medical
F Sciences", "Fellow of the International Institute of Medical Sciences" and
many other similar degrees. The universities are wholly incapable of
imparting any education much less a quality education in abserice of basic
infrastructure like classrooms, libraries, laboratories or campus.
Nevertheless by conferment of a legal status of a university, they have been
empowered to award degrees. The private universities are running
G professional courses without taking prior permission from regulatory
bodies such as All India Council of Technical Education (AICTE), Medical
Council of India (MCI), Dental Council of India (DCI), etc. The_
requirement of obtaining prior permission from the regulatory bodies ~as
not been followed and th

## Text

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....
I
PROF. YASHPAL AND ANR.
A
v.
STATE OF CHHATTISGARH AND ORS.
FEB RU ARY 11, 2005
[R.C. LAHOTI, CJ., G.P. MATHUR AND
B
P.K. BALASUBRAMANY AN, JJ.]
Constitution of India-Schedule VII List II Ently 32, List /II Entry 25
and Article 246-lncorporation of private university-Pre-requisites for'- c
Discussed.
Schedule VII List II Entries 32, 66 List Ill Entry 25 and Article 245Universities having power to have off-campus centers outside the State-Held,
ultra vires Article 245 (!)-Primacy of legislative competence of Parliament:__
Maintenance of high standards-Need for-' University '-Meaning of.L. D
Discussed.
Schedule VII List JI Entry 32, Articles 246, 73 and 162-Jncorporation
of university-Mode for-May be established only through legislative enactment
and not by exercise of executive power-Social impact of incorporation bf
university-Comparison with incorporation ofCompan~Distinction between. E
Articles 246, 254 and Schedule VII-Legislative competence-Primacy
of Parliament-Held, any State legislation which simplifies or sets at naught
-
an enactment validly made by Parliament would be wholly ultra vires.
Education:
F
Universities-Chhattisgarh Niji Kshetra Vishwavidyalaya (Sthapana Aur
Viniyaman) Adhiniyam, 2002-Sections 5,6,3(8) & 9-Chhattisgarh Ni}i
Kshetra Vishwavidyalaya (Sthapana Aur Viniyaman) Sansodhan Adhiniyam,
2004-Sections 5,6,3(6),2(7),5(J)(b)-Constitutional validity of-Held, are ultra
vires the Constitution, being a fraud on the Constitution.
G
-
Universities-Degree-Value of-Held, principal advantage of holding
a university degree is in matter of employment, public or private or in self
employment-Interest of society requires that the holder of an academic degree
23
H
24
SUPREME COURT REPORTS
[2005] 2 S.C.R.
A possesses the proficiency and expertise in the suf?iect which the degree
certifies-Thus, poirer conferred to specific bodies-U0C Act, IY56-Sectio11
22.
University Grants Commission Act, 1956-0biect of and reasons for
creation of-Discussed-Expression 'established or incorporated' to be read
B as 'established and incorporated' in so far as private universities are concerned
Under Section 5 of the Adhiniyam the State has been empowered to
incorporate and establish a university by issuing a notification in the
Gazette and Section 6 permits such university to affiliate any college or
C other institution or to set up more than one campus with the prior
approval of the State Government.
According to the petitioners, after coming into force of the
Adhiniyam, the State Government has been, simply by issuing notifications
in the Gazette, establishing universities in an indiscriminate and
D mechanical manner without having slightest regard to the availability of
any infrastructure, teaching facility or their financial resources. In about
one year 112 universities were established and many of them had
absolutely no buildings or campus and were running from one room
tenements. There was absolutely no regulation or supervision over them.
The legislation has been ehacted in a manner which has completely done
E away with any kind of control of University Grants Commission ('UGC')
over these private universities. The guidelines issued by UGC on the
courses being taught and award of academic degrees has been given a
complete go-by. The universities issued brochures for award of all kinds
of degrees like "Member of the International Institute of Medical
F Sciences", "Fellow of the International Institute of Medical Sciences" and
many other similar degrees. The universities are wholly incapable of
imparting any education much less a quality education in abserice of basic
infrastructure like classrooms, libraries, laboratories or campus.
Nevertheless by conferment of a legal status of a university, they have been
empowered to award degrees. The private universities are running
G professional courses without taking prior permission from regulatory
bodies such as All India Council of Technical Education (AICTE), Medical
Council of India (MCI), Dental Council of India (DCI), etc. The_
requirement of obtaining prior permission from the regulatory bodies ~as
not been followed and the universities are not under the control of any
H authority and are at liberty to grant degrees, diplomas and certificates to
-
""
PROF. YASIIPALv. STATE
25
~ •
gullible students. The State Government has not done any verification or A
J
checking of universities after issuance of notification in the Gazette.,
whether they fulfill any norms laid down by the statutory bodies, which
is essential for recognition of the degrees, diplomas and certificate$
awarded by such universities. In absence of requisite permission from the.
statutory bodies, the degrees and certificates awarded by such universities B
would not be recbgnized by the professional organizations, as a result
whereof the students studying in such universities and obtaining the
degrees therefrom would suffer immense loss, both in terms of money and
also the time spent in completing the courses. It is further averred that
the University Grants Commission Act is made nugatory as private
universities are offering courses without subscribing to the standards laid c
down by the UGC and there being no homogeneity of the course content,
the degree awarded may not be of any value. The private universities are
offering unheard of courses and degrees which are not part of schedule
to the UGC Act, which is in clear violation of Section 22 of the aforesaid
Act and the Schedule appended thereto. The minimum requirement of D
teaching staff as laid down in the guidelines of UGC had also been given
a complete go-by. Young students are being misled in enrolling themselves
in courses which do not haye any substantive content and the degrees
offered by such private universities would affect the standard of education
at large which in turn will jeopardize the educational system of the whole
country and not that of State of Chhattisgarh alone.
E
Several legal issues have also been raised in the writ petitions, the
principal being that the manner in which these private universities are
functioning would result in creating a complete chaos in the system of
higher education in the country and the expert bodies created by the
Central Government like, University Grants Commission, Medical Council F
of India, All India Council for Technical Education etc. for coordination
and determination of standards in their own respective fields would not
be able to perform their statutory duty and would make their functioning
not _only difficult but almost impossible.
Before this Court, the respondent State claimed that it has the G
Ilegislative competence to make an enactment regarding incorporation of
..,.._..
a University; that the impugned Act had been passed to facilitate
establishment of private Universities with a view to create supplementary
resources for assisting the State Government in providing quality higher
education; that ttie notifications establishing the Universities were issued H
.,
f..
26
SUPREME COURT REPORTS
[2005] 2 S.C.R.
r
A on the basis of the representations made by the sponsoring bodies as set
......
4
out in their project reports, that the State Government expected that the
Universities would make the requisite infrastructure including campus,
building, etc. and recruit qualified staff so as to provide higher education
in order to achieve the object for which the Universities were established,
B
that however, the functioning of the Universities post notification was
dismal and completely belied the expectations which the State Government
had in that behalf, raising serious concern about the academic interests
of the students seeking admission therein, that the State Legislature,
accordingly, enacted the Chhattisgarh Niji Kshetra Vishwavidyalaya
(Sthapana Aur Viniyaman) Sansodhan Adhiniyam, 2004, and that after
\--
c expiry of the time limit fixed in the aforesaid amending Act, 59 Universities
were de-notified on account of their failure to comply with the am.ended
provisions. It is further averred that after the Act had been amended in
the year 2004, the petitioners'' grievance has been completely met and
consequently the writ petitions deserve to be dismissed.
D
HELD : 1. How the word "Universities" occurring as a legislative
I
\-
head in the Seventh Schedule should be interpreted, one has to look to
the legislative practice regarding interpretation of Constitutional entries.
[47-E]
Wallace Brothers and Co. Ltd v. Commissioner oflncome~tax, Bombay,
-..
E AIR (1948) PC 118, referred to.
South Carolina v. United Siates, (1905) 199 US 437; Ex part1!
Grossman, (1925) 267 US 87 and Croft v. Dunphy, (1933) AC 156, referred
to.
-.
F
Constitutional Law of India by Seervai, para 2.12 (3rd ed.) and Volume
I 5 Hals bury 's Laws of England (Fourth .ed. Reissue), referred to.
2.1. Though incorporation of a University as a legislative head is; a
State subject (Entry 32 List II) but basically University is an institution
G for higher education and research. Entry 66 of List I is coordination and
determination of standards in institutions for higher education or resea1rch
~
and scientific and technical institutions. There can thus be a clash betwieen
the powers of the State and that of the Union. The interplay of various
entries in this regard in the three lists of the Seventh Schedule and the
real import of Ji:ntry 66 of List I have been examined in several decisions
H of this Court. (53-D-EJ
.
~
r·
--
-
PROF. YASHPAL v. STATE
27
Gujarat University v. Shri Krishna. AIR (1963) SC 703; State of Tamil A
Nadu and Anr. v. Adhiyaman Educational and Research Institute, [ 19951 4
SCC 104; Osmaiila University Teachers Association v. State of Andhra
Pradesh and Anr., [19871 4 SCC 671; Kera/a State Electricity Board v. Indian
Aluminium Co., ( 1976[ I SCC 466 and Dr. Preeti Srivastava and Anr. v. State
of MP. and Ors., (19991 7 SCC 120, referred to.
2.2. The consistent and settled view of this Court, therefore, is that
in spite of incorporation of Universities as a legislative head being in the
State List, the whole gamut of the University which will include teaching,
quality of education being imparted, curriculum, standard of examination
B
and evaluation and also research activity being carried on will not come C
within the purview of the State legislature on account of a specific Entry
on co-ordination and determination of standards in institutions for higher
education or .·esearch and scientific and technical education being in the
Union List for which the Parliament alone is competent. It is the
responsibility of the Parliament to ensure that proper standards are
maintained in institutions for higher education or research throughout the D
country and also unitbrmity in standards is maintained. (57-A-C)
2.3. In order to achieve the aforesaid purpose, the Parliament has
enacted the University Grants Commission Act. First para of the Statement
of Objects and Reasons of the University Grants Commission Act, 1956
("UGC Act") states that it is obvious that neither co-ordination nor E
determination of standards is possible unless the Central Government has
some voice in the determination of standards of teaching and examination
in Universities, both old and new, it is also necessary to ensure that the
available resources are utilized to the best possible effect. The problem
has become more acute recently on account of the tendency to multiply p
Universities and that the need for a properly constituted Commission for
determining and allocating to Universities funds made available by the
Central Government has also become more urgent on this account.
(57-C-F[
2.4. In the second para of the Statement of Object and Reasons, it is G
said that the Commission will also have the power to recommend to any
University the measures necessary for the reform and improvement of
University education and to advise the University concerned upon the
action to be taken for the purpose of implementing such recommendation
and that the Commission will act as an expert body to advise the Central H
28
SUPREME COURT REPORTS
[2005) -2 S.C.R.
A Government on problems connected with the co-ordination of facilities and
maintenance of standards in Universities. [57-G[
- 3.1. The preamble of the UGC Act says - an Act fo make provision
for the coordination and determination of standards in Universities and
for that purpose to establish a University Grants Commission.
B
(57-H; 58-All
3.2. It is important to note that in view of Section 22 of UGC Act,
the right of conferring or granting degree can be exercised only by
University or an instituti_on deemed to be University under Section 3 of
C the aforesaid Act or institution especially empowered by an_ Act of
Parliament to confer or grant degrees. (59-A]
Webster's Third New International Dictionary; Wharton's law lexicon;
- 1
Chambers's Twentieth Century Dictionary; P. Ramanatha Aiyar law Lexicon
(2nd Ed); Encyclopedia Americana and The New Encyclopedia Britannica1,
D referred to.
-
3.3. A degree conferred by a University is a proof of the fact that :a
person has studied a course of a particular.higher level and has successfully
passed the examinati«in certifying his proficiency in the said subject of study
to such level. In the case of a Doctorate degree, it certifies that the holder of
E the degree has attained a high level of knowledge and study in the concerned
subject by doing some original research work. A University degree confers
a kind of a status upon a person like a graduate or a post-graduate. Thos:e
who have done research work and have obtained a Ph~D., D.Lit., or D.S1c.
degree become entitled to write the word "Doctor" before their name and
command certain amount of respect in s~ciety as educated and
F knowledgeable persons. That apart, the principal advantage of holding a
University degree is in the matter of employment,_where a minimum
qualification like a graduate, post--graduate or a professional degree from
a recognized institute is prescribed. Even for those who do not want to take
up a job and want to remain in private profession like a doctor or lawyer,
G registration with Medical Council or Bar Council is neces~ary for whkh
purpose a degree in medic_ine or law; as tbe case may be, from an institution
~
recognized by the said bodies is essential. An ~cademic degree. is, t_herefore,
-·
of great significance and value for the hol~er thereof and goes a long way
in shaping his future. The interest of society also requires that the holder of
an academic degree must possess the requisite proficiency and expertise in
H the subject which the degree certifies. (60-E-H; 61-A]
PROF. Y ASHPAL v. STATE
29
- ;
3.4. Mere conferment of degree is not enough. What is necessary is A
that the degree should be recognized. It is for this purpose that the right
to confer degree has been given under Section 22 of UGC Act only to a
University established or incorporated by or under a Central Act,
Provincial Act or State Act or an institution deemed to be a University
under Section 3 or an institution specially empowered by an Act of B!.
Parliament to confer or grant degrees. Sub-section (3) of this Section
provides that "degree" means any such degree as may, with the previous
approval of the Central Government, be specified in this behalf by the
Commission by notification in the Official Gazette. 161-B-CJ
Azeez Basha v. Union of India, AIR (1968) SC 662, relied on.
c
4.1. The requirement of Section 4 is submission of an application
containing Project Report which will merely indicate availability of land
and some proposals and schemes for generation of funds and mobilization
of resources and also proposal for development of building etc. and courses
of study proposed to be started. It is this Project Report which merely D
contains some proposals and schemes for future implementation which is
accorded sanction by the State Government. 165-D-EJ
4.2. Section 5 says that the State Government may by notification
in the Gazette establish a University by such name and with such E
jurisdiction and location of campus, as may be specified therein having
regard to the desirability to establish a University. The effect of these
provisions is that a Project Report on paper only, which will merely be a
proposal or a scheme for doing something in future, will be notified as a
University by issuing a notification to that effect in the Gazette. [65-E-FJ
F
5.1. The State Legislature is undoubtedly empowered to legislate and
make an enactment for incorporation and establishment of Universities
in view of Entry 32 of List II and Entry 25 of List III. The "University"
as a topic of legislation has not been introduced for the first time in the
Seventh Schedule of the Constitution but was already there in the
G
Government of India Act, where Entry 13 of List I related to Banaras
~
Hindu University and Aligarh Muslim University and Entry 17 of List II
was education including Universities other than those specified in Entry
13 of List I. The framers of the Constitution had the same concept of
"University" in their mind as was there in the Government of India Act
when they made the relevant entries in the Seventh Schedule of the H
30
SUPREME COURT REPORTS
[2005] 2 S.C.R.
A Constitution. Keeping in v\ew the principles of legislative practice, the
• --
word "University" should be given tt!e same meaniqg as it was generally
understood at the relevant time having due regard to what is ordinaril)'
treated as embraced within that topic or subject. 165-H; 66-A-CJ
B
5.2. University is a whole body of teachers and scholars engaged at
a particular place in giving and receiving instructions in higher branches
of learning; and as such persons associated together as a society or
corporate body, with definite organization and acknowledged powers and
privileges and forming an institution for promotion of education in higher·
or more important branches of learning and also the colleges, building;
c and other property belonging to such body. Other necessary attributes of
University are plurality of teachers teaching more than one higher faculties
and other facilities for imparting instructions and research, provision for
residence and must have certain standard of instructions providing for
graduate and post-graduate levels of study. It pre-supposes existence of a
D
campus, classrooms, lecture theatres, libraries, laboratories, offices, beside~•
some playgrounds and also sport facility for overall development of
personality of the students. However, under the provisions of the impugned
Act, a proposal which is on paper and merely gives some kind of a plan
or scheme to be done in future is notified as a University. When thie
Constitution has conferred power on the State to legislate on incorporation
E of University, any Act providing for establishment of the University must
make such provisions that only an institution in the sense of University as
it is generally understood with all the infrastructural facilities, where
teaching and research on wide range of subjects and of a particular levd
are actually done, acquires the status of a University. 166-C-GI
F
5.3. The impugned Act does not at all establish a University, yet by
......
issuing a notification conferring the legal status of a University to a Projed
Report (which is on paper only) bestows upon it a right to confer a degre1e,
which right it gets by virtue of Section 22 of the UGC Act. The manner in
which a University is notified by issuance of a Gazette notification undt:r
G Section 5 and conferment of a juristic personality under Section 6 of the
Act is clearly contrary to the constitutional scheme and is not contemplat£:d
by Article 246 of the Constitution. f66-G-H; 67-AI
1
5.4. The State Legislature can make an enactment providing for
incorporation of Universities under Entry 32 of List II and also generally
H for Universities under Entry 25 of List III. The subject "University" as a
-
PROF. YASl-IPAL v. STATE
31
legislative head must be interpreted in the same manner as it is generally A
or commonly understood, namely, with proper facilities for teaching of
higher level and continuing research activity. An enactment which simply
clothes a proposal submitted by a sponsoring body or the sponsoring body
itself with the juristic personality of a University so as to take advantage
of Section 22 of UGC Act and thereby acquires the right of conferring or B
granting academic degrees but without having any infrastructure or
teaching facility for higher studies or facility for research is not
contemplated by either of these Entries. Sections 5 and 6 of the impugned
enactment are, therefore, wholly ultra vires being a fraud on the
Constitution. 167-B-D)
c
6.1. Entry 66 which deals with co-ordination and determination of
standard in institutions for higher education or research and scientific and
technical institutions is in Union List and the Parliament alone has the
legislative competence to legislate on the said topic. The University Grants
Commission Act has been made with reference to Entry 66. The Act has
been enacted to ensure that there is co-ordination and determination of D
standards in Universities, which are institutions of higher learning, by a
body created by the Central Government. It is the duty and responsibility
of the University Grants Commission, which is established by Section 4
of the UGC Act, to determine and coordinate the standard of teaching
curriculum and also level of examination in various Universities in the E
country. In order to achieve the aforesaid objectives, the role of UGC
comes at the threshold. The course of study, its nature and volume, has
to be ascertained and determined before the commencement of academic
session. Proper standard of teaching cannot be achieved unless there are
adequate infrastructural facilities in the campus 1.ike classrooms, libraries,
laboratories, well-equipped teaching staff of requisite caliber and a proper F,
student-teacher ratio. For this purpose, the Central Government has made
a number of Rules in exercise of powers conferred by Section 25 of UGC
Act and the Commission has also made Regulations in exercise of power
conferred by Section 26 of the UGC Act and to mention a few, UGC
Inspection of Universities Rules, 1960, OGC Regulations 1985 regarding G
the Minimum Standards of Instructions for the Grant of the First Degree,
UGC Regulations, 1991 regarding Minimum Qualifications for
Appointment of Teachers in Universities and Colleges, etc. The UGC with
the approval of the Central Government and exercising power under
Section 22(3) of the UGC Act has issued a schedule of degrees which may
be awarded by the Universities. The impugned Act which enables a H
32
SUPREME COl)RT REPORTS
[2005 j 2 S.C.R.
A proposal on' paper only to be notified as a University and thereby
conferring the power upon such University under Section 22 of the UGC
Act to confer degrees has the effect of completely stultifying the functioning
of the University Grants Commission in so far as these Universities are
concerned. Such incorporation of a University makes it impossible for the
B UGC to perform its duties and responsibilities of ensuring co-ordination
and determination of standards. In absence of any campus and other
infrastructural facilities, the UGC cannot take any measures whatsoever
to ensure a proper syllabus, level of teaching, standard of examination and
evaluation of academic achievement of the students or even to ensure that
the students have undergone the course of study for the prescribed period
C before the degree is awarded to them. [67-D-H; 68-A-D)
Prem Chand Jain v. RK. Chhabra, [1984) 2 SCR 883 and Osmania
University Teachers Association v. State of Andhra Pradesh, [1987) 4 SCC
671, referred to.
D
6.2. The inter se evaluation of merit of candidates is often required
to be done while making selection for some higher or specialized course
of study or in the matter of employment. One of the important functfons
to be performed by the UGC is co-ordination and determination of
standards in instit~tions for higher education so that some kind of'
uniformity is maintained in level of teaching and examination and also
E award of degrees by various Universities. The impugned enactment,
however, enables a sponsoring body, without having any kind of teaching:
facility to award degrees. In view of clauses (8) and (9) of Section 3 of th€:
Act, a University can be established only to establish examination centres
or just to institute degrees, diplomas, certificates and other academk
F distinctions on the basis of examination or any other method of evaluation ·
anywhere and without any pre-determined standards. The possibility that
such Universities which award degrees without having any teaching facility
and without imparting any education will do so only for the purpose of
making money is writ large. The fact that the amendments made in th1e
Act in 2004 making it mandatory to create an endowment fund of Rs. :?
G crores and having provision of 15 acres of land have been challenged by
many Universities speaks volumes of their intention. Preparing a Projec:t
Report on paper is not a difficult job and any number of sponsoring bodies
can be created or formed in order to take advantage of-the easy
opportunity made available by the impugned Act. Persons with absolutelly
H no knowledge in the subject may be awarded high degrt:es or oth(~r
-
PROF. YASHPAL v. STATE
33
distinctions like a Ph.D., D.Lit., or D.Sc. This is bound to create havoc A
with the system of higher education in the country and would result in
nullifying the main object for which University Grants Commission has
been established and would render many provisions of the UGC Act
unworkable and otiose. 168-D-H; 69-A-BI
6.3. Any State legislation which stultifies ur sets at naught an B
enactment validly made by Parliament would be wholly ultra vires.
(69-CJ
R. Chitralekha v. State of My.~ore, AIR (1964) SC 1823, relied on.
7. The whole scheme of the impugned Act, especially the effect of C
Sections 4, 5, 6 thereof and the result which it has led to in notifying as
many as 112 Universities within a short span of one year on the basis of
proposals made on paper with many or most of them having almost zero
infrastructural facilities clearly shows that the relevant provisions of the
Act have completely stultified the power of the Parliament under Entry D
66 to make provision for co-ordination and determination of standards
in institutions for higher education like Universities, the provisions of the
UGC Act and also the functioning of University Grants Commission.
Sections 5 and 6 of the impugned Act are, therefore, wholly ultra vires the
Constitution of India and are liable to be struck down. (70-A-C)
8. The amending Act of' 2004 does not make any appreciable change
in the matter of issuing a notification for establishment of a University.
Under the amending Act, Regulatory Commission is to be established by
the Visitor (Governor). The application containing the Project Report shall
E
be made to the Regulatory Commission one year before the date from.
which it intends to start the University along with proof of having F
established an endowment fund of Rs. 2 crores which shall be used as
security deposit to ensure that the University complies with the provisions
and functions as per the provisions of the Act. In addition proof of being
in possession of 15 acres of land in case the main campus is proposed to
be established within the municipal corporation limits of Raipur otherwise G
25 acres of land has to be furnished. Where the land has been obtained
on lease, the period of lease should be at least 30 years. It further provides
that if the sponsoring body does not possess the required land, it shall
furnish proof of having deposited an additional sum of Rs. 2 crores in the
manner prescribed. The Regulatory Commission on receipt of the Project
Report, proof of creation of the endowment fund and possession of land H
34
SUPREME COURT REPORTS
[2005] 2 S.C.R.
A or in lieu thereof proof of deposit of additional fund and if satisfied with
the proposal to establish the University, may advise the State Government
to issue a notification. Section 5 provides that the State Government on
receipt of the advice of the Regulatory Commission may declare by
notification in Official Gazette that the University is established. Here
B again, without any infrastructure and without the teaching facilities having
been provided, the proposal on paper is notified as a University. Section
4(l)(b)(ii) mentions "possession of land" and not "ownership". It is not
difficult to speculate whether the heavy expenditure involved in making
construction of buildings (classrooms, lecture halls, offices and hostels,
etc.), libraries and laboratories would at all be undertaken on land which
C has been taken on lease for a short period of 30 years. Thus, the amended
Sections 5 and 6 suffer from the same vice as the unamended provisions
and are liable to be struck down as being ultra vires. (74-B-GJ
9. In view of Regulation 3.1, a private University can only be
established either by a separate Act or by one compendious Act where
D the legislature specifically provides for establishment of the said University.
Though an attempt has been made in Section S(l)(b) of the amended Act
in this regard, but the same does not conform to the Regulations inasmuch
as the initial notification notifying. in the Official Gazette that the
University is established, is done by the e~ecutive order and not by any
E Act of legislature. (77-D-E)
10. Sections 3, 3(1)(i), 12, 13, 26, 33 and 34 of the Companies Act
relate to incorporation of a Company. It need not have a prior business
and a mere statement of a lawful purpose in the Memorandum of
Association is enough. If a Company is unable to achieve its objective and
p is unable to carry on business, the shareholders may suffer some financial
loss, but there is absolutely no impact on society at large. However, a
University once incorporated gets a right to confer degrees. A University
having no infrastructure or teaching facility of any kind would still be in
a position to confer degrees and thereby create a complete chaos in the
matter of co-ordination and maintenance of standards in higher studies
G which would be highly detrimental for the whole nation. A University may,
therefore, be established either by the State in exercise of its sovereign
power which would obviously be through a legislative enactment. In the
case of a private University it is necessary that it should be a preestablished institution for higher education with all the infrastructural
H facilities and qualities which may justify its claim for being conferred with
. ,
-
PROF. YASHPAL v. STATE
35
the status of a University and only such an institution can be conferred A
the legal status and a juristic personality of a University. (77-F-H; 78-AI
R. Chitra/ekha v. State of Mysore, AIR (i964) SC 1823 and Gujarat
University v. Shri Krishna, AIR (1963) SC 703, referred to.
I I. The word "or" is normally disjunctivP. and "and" is normally B
conjunctive but at times they are read vice-versa to give effect to the
manifest intentions of the legislature, as disclosed from the context. If
literal reading of the word produces an unintelligible or absurd result
"and" may be read for "or" and "or" may be read for "and". Having
regard to the Constitutional scheme and in order to ensure that the
enactment made by the Parliament, namely University Grants Commission C
Act is able to achieve the objective for which it has been made and the
UGC is able to perform its duties and responsibilities, and further that
the State enactment does not come in conflict with the central legislation
and create any hindrance or obstacle in the working of the latter, it is ·
necessary to read the expression "established or incorporated" as D
"established and incorporated" insofar as the private Universities are
concerned. (78-D-G)
State of Bombay v. RMD Chamarbaugwala, AIR (1957) SC 699 and
Mazagaon Dock v. CIT, AIR (1958) SC 861, referred to.
Principles of Statutory Interpretation by G.P. Singh, 7th ed. Page 339,
referred to.
E
12. The amending Act of 2004 came into force on 17.3.2004. Section.
4(1-A) which was inserted by this amendment provided that a University
already established in the State under the provisions of the Adhiniyam F
shall comply with the provisions of clauses (b) to (e) of sub-section (1) of1
Section 4 by 30th June, 2004 or else the notification issued by the
Government under sub-section (1) of Section 5 of the Adhiniyam shall be
liable to be cancelled on the recommendations of the Regulatory'
Commission. These provisions related to creation of an endowment fund. G
of Rs. 2 crores and requirement of land. It appears that as many as 59
I
Universities were denotified as they did not comply with the requirements
of the aforesaid provision. (79-C-E)
I
13. In order to establish a University, there must be adequate land
on which the campus may be made and necessary infrastructural facilities H
36
SUPREME COURT REPORTS
[2005] 2 S.C.R.
A provided. No University can come into existence without a proper campus
which requires land. Similarly, for those who want to establish a
University, a sum of Rs. 2 crores is a very small amount. It will be seen
that Section 4(1)(c) provides that endowment fund shall be used as security
deposit to ensure that the University complies with and functions as per
B the Act. The history of establishment of Aligarh Muslim University has
been given. Though in the year 1877 the Viceroy laid the foundaticm stone
for the establishment of MuhammadaQ Ango-Oriental College, Aligarh,
which over a period of time became a flourishing institution, yet, when a
demand was made to establish a University, the Government of India made
a condition that at least Rs. 30 lakhs must be collected and thereafter the
C University was established by the 1920 Act. It is extremely difficult to
visualize the real value and purchasing power of Rs. 30 lakhs of the year
1920 at the present juncture. For those who want to establish a University,
a sum of Rs. 2 crores is just a pittance. The fact that many of the private
Universities have challenged the provisions of the amending Act itself
shows their intention and purpose that they do not want to create any
D infrastructure but want to have the right of conferring degrees and earn
money thereby. However, it is not necessary to examine the challenge
raised to the amending Act _in detail, it has already held that Sections 5
and 6 are wholly ultra vires and all notifications issued thereunder notifying
the Universities being invalid are liable to be struck down.
E
[79-H; 80-A-D)
Azeez Basha v. Union of India, AIR (1968) SC 662, referred to.
14. The impugned Act which enables only a proposal of a sponsoring
body to be notified as a University is not likely to attract private capital
F and a University so notified cannot provide education of any kind much
less of good quality to a large body of students. What is necessary is actual
establishment of institutions having all the infrastructural facilities and
qualified teachers to teach there. Only such colleges or institutions which
impart quality education allure the best students. Until such institutions
are established which provide high level of teaching and other facilities
G like well equipped libraries and laboratories and a good academic
atmosphere, good students would not be attracted. In the current scenario,
students are prepared to go to any corner of the country for getting good
education. What is necessary is a large number of good colleges and
institutions and not Universities without any teaching facility but having
H the authority to confer degrees. If good institutions are established for
PROF.YASHPALv.STATE
37
providing higher education, they can be conferred the status of a deemed A
University by the Central Government in accordance with Section 3 of
UGC Act or they can be affiliated to the already existing Universities. The
impugned Act has neither achieved nor is capable of achieving the object
sought to be projected as it enables a proposal alone being notified as a
University. [81-B-El
B
15. In order to protect the interests of the students who may be
actually studying in the institutions established by such private
Universities, it is directed that the State Government may take appropriat~
measures to have such institutions affiliated to the already existing State
Universities in Chhattisgarh. This direction is issued keeping in mind the, C
interest of the students and also Sections 33 and 34 of the Act, which
contemplate dissolution of the sponsoring body and liquidation of a
University whereunder responsibility has to be. assumed by the State
Government. It is, however, made clear that the benefit of affiliation of
an institution shall be extended only if it fulfills the requisite norms and',
standards laid down for such purpose and not to every kind of institution. D
Regarding technical, medical or dental colleges, etc. affiliation may be
accorded if they have been established after fulfilling the prescribed
criteria laid down by the All India Council of Technical Education, Medical '
Council of India, Dental Coun~il of India or any other statutory authority
and with their approval or sanction as prescribed by law.
E
[81-G-H; 82-A-B]
16. The provisions of Section 5 and 6 of the Chhattisgarh Niji
Kshetra Vishwavidyalaya (Sthapana Aur Viniyaman) Adhiniyam, 2002 are
declared to be ultra vires and are struck down. Consequently, all
notifications issued by the State Government in the Gazette in the F
purported exercise of power under Section 5 of the aforesaid Act notifying
the Universities (including respondent nos.3 to 94) are quashed and such
Universities shall cease to exist. If any institutions have been established
by such Universities, steps may be taken for their affiliation to already
existing State Universities in accordance with the direction issued.
(82-D-EI G
CIVIL ORIGINAL JURISDICTION: Writ Petition (C) No. 19 of2004.
(Under Article 32 of the Constitution of India.)
WITH
38
SUPREME COURT REPORTS
[2005] 2 S.C.R.
A
W.P. Nos. 295, 299, 346 and 525/2004, 565/2003, C.A. Nos. 5146,
5161, 5171, 5172, 5174, 5175, 5180, 5184, 5185, 5188, 5189, 5190, 5191,
5197 and 5198 of 2004.
Amarendra Sharan, Additional Solicitor General, (NP), Rakesh Dwivedi,
Dr. Rajeev Dhavan, L.N. Rao, (NP), Ravindra Srivastava, (NP), Ravi Shankar
B Prashad, A.K. Ganguli, Ashok, A. Desai, Ms. Niranjana Singh, Ms. Vimla
Sinha, Abhishek Chaudhary,.Gaurav Bhatia, Adarsh Upadhyay, Vi"vek Singh,
Lakshmi Raman Singh, Ravi Prakash, Chandra Prakash, Prakash Srivastava,
M.K. Choudhary, Kuna! Verma, Ms. Rashmi Rai, P.K. Ray, (NP), Raj Kumar
Mehta, Chandra Shekhar, Shakil Ahmed Syed, J.K Soni, Seeraj Bagga, Ms.
C Sureshta Bagga, Arvind Kumar, Ms. Laxmi Arvind, Ms. Jaya Sinha, Ms.
Poonam Prasad, Roy Abraham, Ms. Seema Jain, Himinder Lal, Sun ii Kumar,
Himanshu Shekhar, Manik Vedsen, Suresh, C.Gupta, Kamal Mohan Gupta,
Krishan Prakash Dubey, Dinesh Kumar Garg, B.S. Bilowria, Rohit Pandey,
D.K. Gupta, S.K. Bandyopdhyay, Raj Kumar Mehta, Ravish Chandra Agarwal,
Gneral (NP) for State of Chhattisgarh, Ms. Supama Srivastava, Ms. Rajesh
D Srivastava, Ms. Deepti Singh, Rahul Srivastava, Amitesh Kumar, E.C. Vidya
Sagar, Maninder Singh, Ms. Pratibha, M. Singh, Angad Mirdha, Saurabh
. .
Mishra, Chava Badri Nath Babu, Bimal Roy Jad, V.K. Rao, Ms. Madhu
Sikri, Jainendra Maldahiyar, Saket Sikri, Satish Kumar, Sanjeev Sachdeva,
Ms. P~iya Puri, V.Shekhar, S. Ganesh, Ms. Manjusha Narain, Rakesh Shrouti,
E B.K. Satija, Ms. Hetu Arora, Naveen R. Nath, Ms. Lalit Mohini Bhat, Ms.
Anitha Shenoy, Sharan Dev Singh Thakur, P. Venkat Reddy, Anil Kumar
Tandale, J.K.